1. Where the boundaries of a Spanish grant made in 1728 are
defined with accuracy, they will not be controlled by vague and
practically unintelligible terms as to quantity.
2. While, owing to the loose manner in which they were made and
the boundaries described, this Court has been extremely liberal in
construing Spanish grants, such grants must still be construed
favorably to the government, and the grantee is bound to show not
only the grant itself; but that its boundaries were fixed with
reasonable certainty, and where the Court of Private Land Claims
has held that the evidence of settlement, occupation, continuity of
possession, cultivation, etc., is so vague, contradictory, and
uncertain as to be almost wanting, this Court, in the absence of
clear evidence to the contrary, will adopt the opinion of the court
below in that particular.
3. Where the last known occupant of a Spanish grant made in 1728
had been killed by the Indians in 1839, and, when the land passed
to the United States under the treaty of 1848 with Mexico,
possession had been abandoned by his descendants for at least nine
years and no action was taken by anyone in regard to the grant
until 1899, and meanwhile the public land surveys were extended
over the tract in 1861, homestead and other entries were made,
improvements established, patents secured and mines opened and
developed, the doctrine of laches is peculiarly applicable, and
under the provisions of the statute establishing it, the Court of
Private Land Claims could not be called upon to confirm such a
grant.
This was a petition for the confirmation of a tract of land in
the County of Santa Fe, New Mexico, known as the Jose de Leyba
grant, which has never been officially surveyed, but is estimated
to contain about 18,000 acres.
After filing the petition, it was found there were a number of
persons holding portions of the tract sued for under a claim of
title adverse to the grant; and, upon motion of the United States,
requiring these adverse claimants to be made parties defendant, the
original petition was amended, and two of these, the American
Turquoise Company and one McNulty, joined with the United States in
defending the case.
Page 189 U. S. 234
The court disallowed the claim upon the ground that the evidence
did not show a perfect grant, inasmuch as there was no evidence of
a compliance with the royal ordinance of 1754, which provided that
all grants subsequent to 1700 must be confirmed as a prerequisite
to their validity, and that, if it were an imperfect grant, it
should, under the act creating the Court of Private Land Claims,
have been filed within two years from the taking effect of the act,
and was therefore barred.
Since the decree of the Court of Private Land Claims, certain
additional evidence has been discovered, tending to show possession
of the land covered by the grant for a long period subsequent
thereto, and which, it is now insisted, supplies the defects which
caused the rejection of the grant.
MR. JUSTICE BROWN delivered the opinion of the Court.
The petition of Leyba, upon which the grant was originally made,
and which is the material document in this case, and is in the
Spanish language, is thus translated in the record:
"City of Santa Fe, May 24, 1728, before the governor and captain
general of this kingdom, there was presented this petition with its
contents:"
"Joseph de Leyba, resident of the City of Santa Fe, appear
before your excellency in due legal form, and state that, in
accordance with the royal ordinance of His Royal Majesty, I enter a
piece of land and wood, vacant and unsettled, enough for half a
fanega of corn-planting land, somewhat more or less, which
is bounded on the east by the San Marcos Road; on the
Page 189 U. S. 235
south by an arroyo called Cuesta del Oregano; on the west by
land of Juan Garcia de las Rivas, and on the north by lands of
Captain Sebastian de Vargas."
"Therefore, I ask and pray, your excellency be pleased to make
me, in the name of His Majesty, a grant for the said piece of land,
for myself and my children, heirs and successors, and that the act
of royal possession be executed to me, whereby I will receive
benefit and favor as well as justice which I seek. And I swear in
due form that this, my petition, is not made in malice, and as it
may be necessary, etc."
"Joseph de Leyba"
Annexed thereto is the grant of the governor and captain general
of the province, with the condition that the grantees settle the
land within the term prescribed by the royal ordinances, and a
direction to the alcalde to put the party in possession.
Following this is the report of the chief alcalde of the City of
Santa Fe, that, having taken witnesses and "inspected the lands and
woods prayed for by the said petitioner," he put him in royal
possession by performing the customary ceremonies of livery of
seisin.
There are two disputed propositions connected with this petition
of Leyba's: (1) as to the quantity of land granted; (2) as to its
boundaries. It is admitted by both parties that the above
translation from the record of the quantity of the land granted "as
a piece of land and wood, vacant and unsettled, enough for half a
fanega of complanting land, somewhat more or less," is
incorrect, the original Spanish being as follows: "
Registro un
pedaso de tierras y monte, yermo y despoblado, que cabe media
fanega de maiz de sembradura, poco mas o menos."
The argument of the government is that the quantity covered by
the grant was only enough land to plant half a
fanega of
corn, a little more or less, and that, as a
fanega de maiz
is a measure of corn which will plant 8.82 acres, half of a
fanega would measure 4.41 acres; the government
translation being:
"I register a piece of land and woods, uncultivated and
unsettled, that will contain half a
fanega de maiz de
sembradura, a
Page 189 U. S. 236
little more or less."
The inference from this is that all that was conveyed was a
piece of land that "will contain" enough for half a
fanega of
maiz. Claimant's translation, however, of the words
que
cabe is that it is a tract of land that "contains" within its
outer boundaries half a
fanega of corn -- that is, of land
capable of cultivation.
The probabilities, aside from the fact that the word
cabe is a verb of the present tense, favor the
construction of the claimant, as the words "lands and woods" would
hardly be used as descriptive of a tract of four and one-half
acres. In addition to that, however, the description of quantity is
wholly inconsistent with the boundaries (hereafter stated), which
evidently contemplated a large tract of land, according to the
Spanish and Mexican customs of making grants to settlers. Indeed, a
grant of four and one-half acres of land at a distance from any
town, city, or settlement is so rare that the presumptions are all
against it. If the boundaries were defined with accuracy, we should
have very little difficulty in holding that they would not be
controlled by the vague description of "a parcel of land and woods,
uncultivated and unsettled, which includes half a
fanega
of corn-planting land."
This is the more apparent by an inspection of the subsequent
documents, which include a will of Simon de Leyba, son of the
grantee, of the year 1783, giving the boundaries of the tract, and
a deed of Salvador Antonio de Leyba, grandson of Jose, to his son
in 1834, also describing the lands by similar boundaries. Indeed,
none of the subsequent documents make any reference whatever to the
half
fanega of corn-planting land. The will also contains
a bequest of livestock and farming tools seemingly appurtenant to
the ranch and greatly in excess of what would naturally belong to a
tract of four and one-half acres.
2. The difficulty, however, is with the description of the
boundaries themselves, which is:
"On the east by the San Marcos Road; on the south by an arroyo
called Cuesta del Oregano; on the west by land of Juan Garcia de
las Rivas, and on the north by lands of Captain Sebastian de
Vargas."
In the will of Simon de Leyba of 1783, the boundaries are the
same upon the south and east, and on the north "the road which
goes
Page 189 U. S. 237
towards Pecos from the Cerrillos, or lands of Captain Sebastian
de Vargas," and on the west "with the lands of the old pueblo of
the Cienega." The land is described in substantially the same terms
in the deed of 1834. The description of the lands on the east side
as bounded by the San Marcos Road is clearly defined. The
description of the north boundary as the road from Pecos to the
Cerrillos is also defined with somewhat less certainty, the lands
of Sebastian de Vargas having been located, surveyed, and confirmed
several miles to the east of the Leyba grant; but upon the west and
south the boundaries, even as sworn to orally by witnesses, are so
uncertain as to afford little guide to a surveyor in attempting to
locate the tract.
The west boundary, which is described in the grant as "the lands
of Juan Garcia de las Rivas," is described in the will of 1783 as
"the lands of the old pueblo of the Cienega." While there is some
evidence from the archives that the father of Garcia de las Rivas,
in 1701, owned a piece of land somewhere west of the Leyba tract,
known even then as the old Pueblo of la Cienega, there is nothing
to show the east boundary of the pueblo, and consequently the west
boundary of the Leyba tract. The south boundary, said to be "an
arroyo called
Cuesta del Oregano,'" it seems to be impossible
to locate with any degree of certainty, though it was probably near
the Coyote Spring at which the only house built upon this tract
appears to have been located. This house long since fell into
ruins, and there is no evidence that it has been occupied since the
last owner of the grant, Juan Angel de Leyba, was supposed to have
been killed by the Indians in 1839.
The evidence of possession subsequent to the grant does not
afford much aid in fixing the boundaries, since the land, like most
of that in Spanish-American territories, was not of a kind
admitting of a well defined, actual, and adverse possession, such
as that of cultivated land. The most favorable view for petitioner
that can be taken of this evidence is that possession of a house or
a certain field of arable land may be referable to the entire tract
included within the boundaries of the grant; but when the
boundaries themselves are indefinite, the possession of a house is
of no value in fixing the boundaries. A grant too
Page 189 U. S. 238
indefinite to be located, and never fixed by any survey, is void
as against the United States. As was observed in
United States
v. Delespine, of a Spanish grant in Florida,
40 U. S. 15 Pet.
319,
40 U. S. 335,
"the public domain cannot be granted by the courts." They may
locate the boundaries fixed by grant, but the boundaries must be so
fixed as to admit of a survey.
United States v.
Miranda, 16 Pet. 153,
41 U. S. 160;
United States v.
King, 3 How. 773;
Villalobos
v. United States, 10 How. 541;
Arivaca Land
& Cattle Co. v. United States, 184 U.
S. 649,
184 U. S.
652.
The grant was made and possession was given to the grantee in
1728. Nothing being shown to the contrary, we presume that the
possession continued until 1783, the date of the will of Simon de
Leyba to his son, Salvador Antonio de Leyba, "whom I recognize as
my sole heir." The next item of interest tending to show possession
is the deed of Salvador Antonio de Leyba in 1834 to his son, Juan
Angel de Leyba, who are both described as residents of the City of
Santa Fe, wherein the same boundaries are also given, although the
land is called
"the rancho of the Coyote Spring, with its houses and corrals,
together with the grant in which the said ranch is situated, which
was given to my grandfather by the King of Spain, May 25,
1728."
Juan Angel appears to have been killed by Indians a few years
after this deed was made, but it seems to have been uncertain
whether he was in actual possession of the tract.
To rebut the case made by the claimant, the government offered
in evidence the depositions of several residents of that
neighborhood, who swore that they had never heard of the Jose de
Leyba grant, or its boundaries. Objection was made to the reading
of these depositions upon the ground that the witnesses named were
present in court, and might be sworn orally. It is unnecessary to
determine whether the court erred in admitting the depositions
under such circumstances, in view of the vague and unsatisfactory
evidence on behalf of the claimant of the boundaries and possession
of this tract.
Admitting that the documents introduced afforded a sufficient
presumption of a continued possession from 1783 to 1834, there was
no evidence of the occupation of the land by any member of the
Leyba family subsequent to 1839. This fact of
Page 189 U. S. 239
a total absence of any claim to the land made by the last heirs
of the occupant, and that the house was allowed to fall into ruins,
is strong evidence either that the land was abandoned as not worth
cultivating or that a residence there had become too dangerous by
reason of the presence of hostile Indians. In this connection, the
court below found that
"the evidence as to the settlement and occupation of the tract
purporting to have been granted, continuity of possession,
cultivation, residence, improvement, claim of ownership, notoriety
of the grant, and knowledge of the existence in the community or by
the oldest inhabitants now living, is so vague, contradictory, and
uncertain as to be almost wholly wanting."
In the absence of clear evidence to the contrary, we deem it our
duty to adopt the opinion of the court below in that particular.
United States v. Pendell, 185 U.
S. 189,
185 U. S.
197.
While, in construing these Spanish grants, owing to the loose
manner in which they were made and the boundaries described, we
have been extremely liberal, still we are bound to consider that
grants of this description, as of all others, must be construed
favorably to the government, and the grantee is bound to show not
only the grant itself, but that the boundaries were fixed with
reasonable certainty.
Slidell v. Grandjean, 111 U.
S. 412,
111 U. S. 437;
United States v. Oregon &c. R. Co., 164 U.
S. 526,
164 U. S.
539.
3. But, conceding that an experienced surveyor, acquainted with
the land in that neighborhood, might locate the boundaries of this
tract, there is a still more serious difficulty in the evidence of
abandonment and the laches of the claimant, which defenses may
properly be considered together. Under our Anglo-Saxon system of
jurisprudence, questions of the abandonment of land by the owner
rarely arise, since they are usually sold to a purchaser or to the
state for taxes; but the Spanish law recognizes distinctly the
right to abandonment. It is stated in 1 Partidas, Law 50, p. 365,
that
"if a man be dissatisfied with his immovable estate and abandons
it, immediately he departs from it corporally, with an intention
that it shall be no longer his, it will become the property of him
who first enters thereon."
See also Hall's Mexican Law, ยง 1489. The same principle
is stated by Escriche, title "
Abandono de cosas:"
Page 189 U. S. 240
"If an owner voluntarily abandons a thing, whether personal or
real, with intent no longer to count it in the number of his
possessions, because it is useless or burdensome, or for mere
caprice, he loses his ownership, and the first who occupies it
makes it his."
We are also referred by counsel to a law of the Departmental
Council of New Mexico, enacted in 1837, which declares that
"every individual who abandons the land upon which he has
settled, and which he acquired by grant, with the intention of
establishing himself elsewhere to live there, and does not leave
some one to take his place in ordinary labor, shall lose the real
property he had acquired."
See also Landes v. Perkins, 12 Mo. 238, 256;
Sideck
v. Duran, 67 Tex. 256.
As there is no testimony tending to show that the Leybas ever
sought to resume possession of the land after the death of Juan
Angel, in 1839, there was at least, a presumption of abandonment.
Not only is there no evidence tending to show possession of the
land by representatives of the original grantee since 1839, but for
sixty years thereafter there was no attempt made to assert title
thereto. By section 7 of the Private Land Claims Act, 26 Stat. 854,
"all proceedings" therein "shall be conducted, as near as may be,
according to the practice of the courts of equity of the United
States;" and, by section 13, no claim shall be allowed upon an
imperfect title unless "the claimant would have had a lawful right
to make perfect had the territory not been acquired by the United
States," nor upon a perfect title, "if the same was not at said
date already complete and perfect." While it is true that we have
held that evidence of possession since the date of the treaty
cannot be regarded as an element going to make up a title,
Crespin v. United States, 168 U.
S. 208;
Hayes v. United States, 170 U.
S. 637,
170 U. S. 653;
Hays v. United States, 175 U. S. 248,
175 U. S. 259,
it does not follow that abandonment of the land, and failure to
assert a title since the treaty, may not operate as a bar. It is
clear that, in the establishment of a title as of a certain date,
possession subsequent to that date
Page 189 U. S. 241
is of no value; but, considering the title to have been
sufficient as of that date, failure to assert such title within a
reasonable time thereafter opens the case to the defense of
laches.
In
United States v.
Moore, 12 How. 209, it was said of a Spanish grant
in Louisiana:
"We are called on to decide in this case according to the rules
governing a court of equity, and are bound to give due weight to
lapse of time. The party was under no disability, and slept on his
rights, as he now claims them, for nearly fifty years, without
taking a single step. He makes no excuse for his long delay, and
cannot now get relief by having his title completed. No case has
come within our experience where the obscurity and antiquity of the
transaction more forcibly than in the present case required a court
of equity to bar a complainant on legal presumptions founded on
lapse of time, and where the bar should take the place of
individual belief."
To the same effect are
Gildersleeve v. New Mexico Mining
Co., 161 U. S. 573, and
United States v. Martinez, 184 U.
S. 441.
There are facts connected with this case which render the
doctrine of laches peculiarly applicable. This land passed into the
possession of the United States under the treaty with Mexico of
1848. Possession of the land had then been abandoned by the
descendants of the grantees for at least nine years, and probably
longer. In 1854, six years after the treaty, a surveyor general was
appointed for New Mexico, 10 Stat. 308, whose duty it was to
ascertain the origin, nature, character, and existence of all
claims to lands under the laws, usages, and customs of Spain and
Mexico, and report to Congress with a view of confirming
bona
fide grants, and giving full effect to the treaty. No action
appears to have been taken before him to ascertain the validity or
boundaries of this grant, although the act seems to have remained
in force until 1891, when the Court of Private Land Claims was
created. The public land surveys were extended over the tract in
1861; homestead and other entries were made, improvements
established, patents secured, mines opened and developed, but no
attempt made to assert the rights of the grantee or his
descendants. The Court of Private Land Claims was established in
1891, and all persons having imperfect
Page 189 U. S. 242
titles were required to present them within two years, and all
having perfect titles had the right, but were not bound, to apply
to that court for confirmation of such title. It was not until 1899
that the petition in this case was filed by a person who appears,
in 1895, to have found lineal descendants of the original grantee,
from whom he had secured deeds of this abandoned grant, the very
existence of which seems to have been forgotten. If this be
considered an imperfect grant, the right to file it expired years
ago; if it be a perfect grant, as now claimed, we see no reason why
the owner may not prosecute his claim in the territorial courts.
Without expressing an opinion as to whether this was a perfect or
imperfect grant within the meaning of the law, or whether the
boundaries might not still be ascertained by a survey, we are
satisfied that it is one which the Court of Private Land Claims
could not be called upon to confirm, and that, if for no other
reason, the petition should be dismissed upon the ground of
laches.
The decree of the court below is therefore
Affirmed.
On petition for modification of the above decree of affirmance,
MR. JUSTICE BROWN announced on June 1, 1903, the order of the Court
that such decree be amended by adding the following words: "So far
as such decree orders that the petition be dismissed, but without
prejudice to such further proceedings as petitioner may be advised
to take."